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Section 25A - Requests may be refused in certain cases

Guidelines

Overview of section 25A

1.1

Section 25A creates two circumstances where an agency or Minister can refuse a request, without processing:

  • section 25A(1) allows an agency or Minister to refuse a request where the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations or interfere with the performance of the Minister’s functions;
  • section 25A(5) allows an agency or Minister to refuse a request where all documents, as described in the request, are obviously exempt and there is no obligation to provide edited documents.
1.2

Section 25A, subsections (2)-(4) and (6)-(7) relate to and qualify section 25A(1) only (voluminous requests). They do not relate to section 25A(5) (obviously exempt requests).

Refusing a request under section 25A(1) – substantial and unreasonable diversion of resources

1.3

Under section 25A(1), an agency or Minister may refuse to grant access to documents without processing a request if satisfied the work involved:

  • in the case of an agency, would substantially and unreasonably divert the agency’s resources from its other operations; or
  • in the case of a Minister, would substantially and unreasonably interfere with the performance of the Minister’s functions.
1.4

Section 25A(2) sets out a non-exhaustive list of matters an agency or Minister must have regard to in deciding whether to refuse a request under section 25A(1). These matters are relevant to estimating the work involved in processing a request.

1.5

Section 25A(3) and (4) set out matters the agency or Minister must not have regard to when deciding whether to refuse a request under section 25A(1). Namely:

  • any maximum access charges payable under the regulations for processing the request;
  • the applicant’s reasons for requesting access; and
  • the agency or Minister’s belief as to what are the applicant’s reasons for requesting access.
1.6

Section 25A(6) requires an agency or Minister to consult with and provide certain information to an applicant before refusing access under section 25A(1). This section is designed to allow an applicant to alter the request so it can be processed, rather than refused under section 25A(1).

1.7

Under subsection (7), the period of time starting on the day a notice under section 25A(6) is given to an applicant and ending on the day the applicant confirms or alters the request is not included in the calculation of the 30 day statutory time period for notifying an applicant of a decision on a request under section 21(1).

Purpose of section 25A

1.8

Section 25A was introduced because substantial and unreasonable diversion requests were seen to be causing severe disruption to agencies, even though the number of such requests was relatively small.4

1.9

The section gives effect to a 1989 report by the Legal and Constitutional Committee of the Victorian Parliament,5 which recommended a provision be inserted into the Act to strike a balance between two public interests. Firstly, the public interest, as expressed in the object of the Act, to facilitate and promote the maximum disclosure of information held by government, and secondly, the public interest in efficient government administration.

1.10

The purpose of section 25A is to prevent the mischief that occurs when an agency or Minister’s resources are substantially and unreasonably diverted from its other operations.6

Power is intended to apply in clear and limited circumstances

1.11

Section 25A(1) should only be applied in a clear case of substantial and unreasonable diversion of agency or Minister resources.15 This is because section 25A(1) must be read consistently with the object of the Act,16 which is to extend as far as possible the right of the community to access information in the possession of the government and the requirement to exercise discretions in a way that facilitates and promotes the disclosure of information.17

1.12

Applying section 25A(1) only in a clear case, is also consistent with the right of access granted by section 1318 and the positive requirement in section 16 for an agency and Minister to maximise public access to information.

1.13

An agency or Minister that refuses access under section 25A(1) must establish the requirements of the section.19 These requirements are not easily satisfied and will only apply in limited circumstances.20

1.14

It will depend on the facts of each case, with detailed evidence usually required by an agency or Minister to establish that the consultation requirement under section 25A(6) has been met and the work involved in processing a request would substantially and unreasonably divert the agency or Minister’s resources from its other operations.21

1.15

An agency or Minister cannot avoid their statutory duty by deliberately withholding resources or deliberately failing to provide proper resources for its FOI function.22 Professional Standard 9.1(a) requires a principal officer of an agency to ensure their agency is sufficiently resourced to receive and process requests.

1.16

If the processing of requests is regularly constrained by the level of FOI resourcing, the agency or Minister must review the adequacy of its resourcing.

Scope of section 25A(1)

Section 25A(1) must be applied to the whole request

1.17

Section 25A(1) can only be used to refuse access to the whole request. An agency or Minister cannot apply section 25A(1) to part of a request only, and process the documents falling within the remaining part of the request.24

1.18

If the request comprises several parts, the agency or Minister should advise the applicant at the earliest possible time, the parts that would be able to be processed, so the applicant can consider not pursuing those parts that would bring the request within section 25A(1).

Request must be valid before considering section 25A(1)

1.19

An agency or Minister must determine if a request is ‘valid’ under section 17 before considering section 25A(1). ‘Valid’ means the request meets the requirements of section 17. One of these requirements is that it provides information reasonably necessary for the agency or Minister to identify the documents sought.27

1.20

If the request does not enable the agency or Minister to identify what documents are sought, it will not be a valid request. The agency or Minister must help the applicant make a valid request.28

1.21

It is only once it is clear what documents are sought and the request meets the requirements of section 17, that an agency or Minister should consider whether section 25A(1) applies.

1.22

In practice, assisting an applicant to clarify a request can result in the breadth of a request being reduced to something manageable, so that the agency or Minister can process the request.

For more information on the requirements of a valid request, see section 17 – Requests for access.

Combining multiple requests for the purposes of section 25A(1)

1.23

Section 25A(1) is intended to apply to each separate FOI request. However, in certain circumstances, multiple requests may be treated as a single request for the purposes of deciding if section 25A(1) applies.31

1.24

Requests should only be combined where there is a clear connection between the requests, such as whether:

  • the multiple requests are made by or on behalf of the same person;
  • the multiple requests seek documents that concern the same subject matter;
  • the requests were lodged at or about the same time; or
  • treating the requests as separate requests would allow the applicant to evade the purpose of section 25A(1), which is to avoid an agency’s or Minister’s resources being substantially and unreasonably diverted from its core operations or functions.32
1.25

The above list of factors is not exhaustive, and not all of them need to exist to enable requests to be treated as one request for the purposes of section 25A(1).

Applying section 25A(1)

Step 1: Make a reasonable estimate of the work involved in processing the request

1.26

Once a request is valid under section 17, in considering whether section 25A(1) applies, the first step is to determine the work involved in processing the request.

1.27

An agency or Minister does not have to specify exactly how many documents would fall within a request or calculate exactly how much time and resources would be needed to process the request. Estimates are acceptable. For an agency or Minister to provide an exact number would be to do the work that section 25A(1) is designed to prevent.42

1.28

The onus is on the agency or Minister to establish their estimate is reasonable.43

1.29

When estimating the work involved in processing the request an agency or Minister must consider the resources that would have to be used in:

  • identifying, locating or collating the documents in the agency’s or Minister’s filing systems or office of the Minister;
  • deciding whether to grant, refuse, or defer access to the documents or edited copies of the documents, including resources for examining the documents or undertaking consultation;
  • making copies or edited copies of the documents;
  • notifying the applicant of an interim or final decision.44
1.30

The estimate should not include time spent by the FOI unit in handling an anticipated high number of internal inquiries from agency staff due to the sensitive nature of a request.45

1.31

In practice, calculating an estimate will usually involve identifying the:

  • number of documents likely to fall within the scope of the request;
  • nature and type of documents falling within the scope of the request;
  • kinds of document searches that would be required and the resources required to conduct those searches (for example, searching multiple email accounts, manual search of hard copy records, consulting with the agency’s IT department to access archived emails or documents);
  • content of the documents;
  • number and range of possible exemptions and the time needed to assess the documents for exemptions;
  • extent of consultations required, and the time needed to conduct the consultation;
  • time needed to edit the documents;
  • time needed to copy the documents or arrange an inspection of the documents; and
  • time needed to prepare a notice of decision on the request.
1.32

An agency or Minister may estimate the time and resources involved by extrapolating from a reasonably representative sample of the documents falling within the request. The sampling should be undertaken diligently, by someone with appropriate expertise, considering each document briefly as if they were making a decision on access, and making detailed records of the process.

1.33

Where the person making the estimate is familiar with the type of documents and has experience in conducting consultation and in assessing documents of that nature, it may be possible to estimate the work involved without reviewing a sample of documents. For example, the decision maker may be confident that it will take one minute per page to process the request.

1.34

However, where sampling has not been undertaken, an agency or Minister should bear in mind that if the applicant applies for a review of the decision, the agency or Minister must produce evidence to establish the estimate was reasonable. This may be in the form of a witness statement from the person who made the estimate, detailing their familiarity with the documents and previous experience, or may require the agency or Minister to later undertake sampling to justify its decision.

1.35

Whatever method is used, it must result in an estimate that is reasonable. For example, referring to the equivalent provision in the Commonwealth FOI Act, the Administrative Appeals Tribunal stated the methods used ‘must not be such as to allow substantial error to enter into the estimate’.46

1.36

Examples of VCAT not accepting an agency’s estimate are outlined in the yellow text box below.

Step 2: Assess whether the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations

1.37

Once the estimate of the work involved in processing the request has been made, the agency or Minister must be satisfied that the diversion of the agency’s resources, or the interference with the Minister’s functions, is both substantial and unreasonable.

1.38

The question is about the impact of processing the request at that point in time, not some future or past time where the agency or Minister may have or had less or more available resources.52

‘Resources of the agency’

1.39

The resources to be considered are those the agency or Minister reasonably requires to process the request while serving their other operations.58 This includes:

  • the resources of the agency’s or Minister’s internal FOI division;59
  • the resources of an agent of the agency or Minister that is responsible for responding to the request, because it is in possession of requested documents;60 and
  • refers to the capacity of the agency or Minister overall to process the request, not just the capacity of the FOI unit of the agency or Minister.61
1.40

An agency or Minister is not required to obtain external assistance to process a request, such as hiring a consultant to process a request or hiring IT consultants to carry out substantial work before electronic documents may be accessed.

1.41

However, an agency must not deliberately fail to provide resources to respond to FOI applications.62 Professional Standard 9.1(a) requires a principal officer of an agency to ensure their agency is sufficiently resourced to receive and process requests.

‘Other operations’

1.42

‘Other operations’ refers to all of the other things that an agency or Minister does (apart from processing the request), including dealing with and processing other FOI requests.64

Substantial diversion

1.43

‘Substantial’ has been interpreted to mean the diversion of resources must be more than merely nominal (minor).66

1.44

Each case must be determined on an individual basis. What is substantial for one agency or Minister may not be for another. The fact a request would involve a large number of documents does not necessarily mean it meets the threshold of ‘substantial’, as the documents may still be relatively easy to identify, collate, and assess.

1.45

Factors that may be relevant to determining whether the diversion of resources would be substantial may include the:

  • nature and size of the agency;
  • level of resourcing allocated to FOI processing;
  • number of other FOI requests on hand, and whether requests received are increasing or decreasing; or
  • number of employees who may help process the request, and their other responsibilities.
1.46

For example, it may be relevant to consider, in the case of a request to a Minister, whether the Minister can get help from an agency and whether the special attention of the Minister or a senior officer is needed. In the case of a request to an agency, it would be relevant to consider whether the work can only be undertaken by one specialist officer who has competing responsibilities.

Unreasonable diversion

1.47

Determining whether the diversion of resources would be unreasonable involves balancing the estimated impact on the agency or Minister of processing the request against the object of the Act, which is to extend as far as possible the community’s right to access information held by government.86 It is not necessary to show the extent of unreasonableness is overwhelming.87

1.48

An agency or Minister must not have regard to any:

  • maximum amount that may be charged for processing the request; or
  • reasons given by an applicant for making the request, or any belief by the agency or Minister as to the reasons why the request was made.88
1.49

VCAT set out the following factors to be considered when deciding if the diversion of an agency’s resources would be unreasonable:89

  • whether the terms of the request offer a sufficiently precise description to allow the agency to locate the documents sought within a reasonable time and with reasonable effort;
  • the public interest in disclosure of documents relating to the subject matter of the request;90
  • whether the request is a reasonably manageable one, giving due but not conclusive regard to the size of the agency and the extent of its resources usually available for dealing with FOI requests;
  • the estimated number of documents covered by the request, the number of pages and the amount of officer time and salary cost;
  • the reasonableness or otherwise of the agency’s initial assessment and whether the applicant had taken a co-operative approach in revising the application;91
  • the statutory time limit under the Act for making a decision;
  • the degree of certainty that can be attached to the documents and processing time estimates, and whether there is a real possibility that the processing time may exceed the estimate;
  • whether the applicant is a repeat FOI applicant.
1.50

In relation to the last factor, being a repeat applicant is irrelevant if the applicant is a media organisation92 or a Member of Parliament.93 For other applicants, it may be a relevant factor where the applicant had an extraordinary history of numerous previous requests to an agency.94

1.51

It may also be relevant to consider the steps an agency or Minister has already taken to inform the public about the subject matter of the request.95 The nature of the agency’s activities may also be significant.96

1.52

There is no threshold number of hours beyond which processing a request would be held to be a substantial and unreasonable diversion. However, most VCAT decisions have agreed that section 25A(1) applies where processing the request would take hundreds of hours.

1.53

Examples of VCAT and OVIC decisions upholding section 25A(1) are set out below. Each decision was made in the context of the size of the agency and its available resources.

Step 3: Consult with the applicant under section 25A(6)

1.54

An agency or Minister cannot decide to refuse a request under section 25A(1) without first giving the applicant a reasonable opportunity to rescope or narrow their request, and the consultation fails to remove the ground for refusal.

1.55

Under section 25A(6) and Professional Standard 5.2, the agency or Minister must:

  • give the applicant a written notice:
    • stating its intention to refuse the applicant’s request;
    • inviting the applicant to consult with an identified agency officer or member of the Minister’s staff with a view to making the request in a form that would be able to be processed; and
    • explaining to the applicant why the request would substantially and unreasonably divert the resources of the agency from its other operations;
  • give the applicant a reasonable opportunity to consult; and
  • as far as is reasonably practicable, give the applicant any information or suggestions that would assist them to make a request in a form that would remove the ground for refusal.106

For more information, see Template 15 – Section 25A(6) Consultation notice – Unreasonable Diversion of Resources.

Consultation must meet requirements of section 25A(6) before request can be refused

1.56

An agency or Minister must comply with all of the requirements in section 25A(6) before it can refuse a request under section 25A(1).109

1.57

The agency or Minister bears the onus of establishing that the requirements of section 25A(6) have been met.110

1.58

If an applicant seeks review of an agency or Minister’s decision to refuse a request under section 25A(1), and the Office of the Victorian Information Commissioner (OVIC) determines the agency or Minister’s consultation with the applicant did not meet the requirements under section 25A(6), OVIC’s decision will require the agency or Minister to process the applicant’s request.

Impact on time frame to make a decision on the request

1.59

The 30 day statutory processing time is suspended from the date an applicant is given notice under section 25A(6) of an agency or Minister’s intention to refuse the request until the date the applicant confirms or alters the terms of their request.113

1.60

It is important to give an applicant a notice under section 25A(6) as soon as possible after a request is received, to allow sufficient time to process a revised request without undue delay.

1.61

Under Professional Standard 5.1, an agency must take reasonable steps to notify an applicant under section 25A(6) within 21 days of receiving a valid request.

1.62

The 30 day timeframe resumes if an applicant confirms or alters the terms of the request. For example, the applicant sends the agency an amended request or instructs the agency that they wish to continue with the original request.114

Providing a reasonable opportunity to consult

1.63

The Act does not specify what constitutes providing an applicant with a reasonable opportunity to consult. The timeframe will depend on the facts in each case.

1.64

Professional Standard 5.2requires an agency to provide an applicant with at least 21 days to respond to a section 25A(6) notice. However, there may be situations where a longer period is reasonable. For example, if the agency knows the applicant is away for three weeks, it would not be reasonable to only provide 21 days to respond to the section 25A(6) notice. Further, where there is correspondence between the agency and the applicant, it is likely more than 21 days would be required.

Assisting an applicant to revise a request

1.65

The agency or Minister must explain why the request is too broad and if possible offer suggestions and information to help the applicant to rescope or narrow the request to avoid the ground for refusal under section 25A(1).

1.66

This could include:

  • giving the applicant information about the types or classes of documents the agency or Minister holds in relation to the subject matter, or information about how records are made and stored in the agency or Minister’s office;
  • asking the applicant for more information about the incident or subject matter that interests them, and suggesting specific documents or types of documents that are likely to be of interest;
  • making suggestions as to how the request could be rescoped or narrowed (for example, by reducing the time period, reducing the categories of documents and/or eliminating material that involves third parties). Sometimes getting the applicant to discuss their request with a staff member from the relevant operational area may help them to identify the documents they want and refine their request accordingly.
1.67

An agency or Minister does not have to give the applicant lists of all relevant documents. However, an agency or Minister must provide relevant, useful information to assist the applicant to make an request that can be processed.

Agency must keep records of consultation

1.68

Professional Standard 5.3 requires an agency to keep records of the consultation undertaken including any responses from the applicant and the final terms of any amended request.

1.69

OVIC is likely to request records of consultation if OVIC is reviewing the decision.

Example OVIC decision to illustrate the elements of section 25A(6)

Step 4: Make a decision or process an altered request

If consultation does not remove ground for refusal

1.70

If an applicant does not respond to a section 25A(6) notice, or has not confirmed or altered the request in a way that removes the ground for refusal after being given a reasonable opportunity to consult, the agency or Minister can make a decision to refuse access under section 25A(1).

1.71

A notice of decision with reasons under section 27 must be given to the applicant. The notice should include:

  • a description of the estimated number and types of documents covered by the request, including an estimate of the number of pages or other description of size (such as hours of audio visual recordings);
  • a description of the agency’s or Minister’s efforts to help the applicant revise their request, and any response from the applicant;
  • the reasons why the request is considered a substantial and unreasonable diversion of the agency’s resources or a substantial and unreasonable interference with the Minister’s functions, including the estimate of the resources that would be involved in each of the processing steps, an indication of the complexity of the decision and why it would be an unreasonable diversion with reference to the particular circumstances of the matter;
  • details of the applicant’s review rights.
1.72

An agency or Minister should provide detailed reasons in the notice of decision to explain why section 25A(1) applies.

For more information, see Template 20 – Decision letter – refusal under section 25A(1).

If consultation removes ground for refusal

1.73

If the request for access is sufficiently rescoped or narrowed during the consultation process, so that it is no longer considered a substantial and unreasonable diversion of the agency’s resources (or interference with a Minister’s functions), the agency or Minister must process the request.

1.74

The agency or Minister should confirm the terms of the altered request in writing to the applicant and advise the applicant of the due date for providing a notice of decision on the request, taking into account the consultation period during which the 30 day timeframe for processing the request was suspended under section 25A(7).

Refusing a request under section 25A(5) – obviously exempt documents

1.75

An agency or Minister may refuse a request without processing it, if:

  • it is apparent from the nature of the documents described in the request, that all of the documents are exempt;117 and
  • the agency or Minister cannot provide access to an edited copy of any of the documents, or the applicant does not want to receive an edited copy of the documents.118
1.76

If section 25A(5) applies, it allows an agency or Minister to refuse the request without:

  • having identified any or all of the documents to which the request relates; and
  • specifying, in respect of each document, the exemption(s) that make the document exempt.

Power will only apply in clear and limited circumstances

1.77

Section 25A(5) is designed to save the resources of an agency or Minister that would have been spent in processing a request. It is intended to prevent applicants from misusing the Act, similar to the safeguards in sections 24A and 25A(1).124

1.78

An agency or Minister may only rely on section 25A(5) in clear and limited circumstances.125 An agency or Minister must interpret and apply section 25A(5) consistently with the Act’s objects to extend, as far as possible, the right of the community to access government held information through a general right of access to documents.126

1.79

The power under section 25A(5) is discretionary. The Act’s objects require an agency and Minister to exercise the discretion as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information. Ministers and agencies are also required to administer the Act with a view to maximising public access to information.127

1.80

If an agency or Minister wishes to refuse a request because the requested documents are exempt, it must normally identify, locate, and examine the documents and explain why the exemptions apply. In contrast, the power under section 25A(5) significantly limits a person’s right to access information under the Act. It limits transparency and procedural fairness by preventing an applicant from knowing if and how many documents exist, and whether the exemptions apply to each document or class of document.

1.81

Establishing the elements of section 25A(5) is a heavy burden for agencies and Ministers. It can be difficult to establish that all documents captured by a request would be exempt, without searching for and inspecting the documents.128 It is also less likely that section 25A(5) will be established if multiple exemptions must be used to exempt all the documents captured by the request.

1.82

Section 25A(5) will only apply in the limited circumstance where, as an objective fact, it is clear from how the documents are described in the request that all of the documents are exempt. This is more likely to happen if the request is narrow, compared with a broadly drafted request.

1.83

Section 25A(5) will not apply where it is practicable to provide an edited copy of any of the requested documents, or the applicant would like to receive edited documents. If an agency or Minister has to provide edited documents, the request must be processed.

Engaging with an applicant to rescope a request

1.84

Before refusing a request under section 25A(5), an agency or Minister should engage with an applicant and help them to change their request so the agency or Minister can process it in the usual way under the Act.

1.85

The Act does not require an agency or Minister to help an applicant to rescope a request that might be refused under section 25A(5). However, rules of procedural fairness require a decision maker to give a person an opportunity to respond before making an adverse decision affecting their rights or interests.

1.86

Engaging with an applicant before refusing a request under section 25A(5) is consistent with the object and purpose of the Act, and the requirement in section 17 to assist an applicant to make a valid request.

First element – apparent on the face of the request that all documents exempt – section 25A(5)(a)

1.87

For section 25A(5) to apply, the first element is: it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents.

1.88

The nature of a document refers to the ‘inherent or essential quality and character of the documents as described’.133 An agency or Minister cannot ‘go behind the description of the documents in the request’.134

1.89

It must be objectively apparent from the face of the request that all requested documents are exempt by their nature (under one or more exemption).135 This requires agencies and Ministers to consider the elements of the exemptions to determine whether all documents would fall within one more exemption.

1.90

If one document out of multiple documents or classes of documents falling within a request would not be exempt, the agency or Minister cannot rely on section 25A(5) to refuse the request.136 An agency or Minister cannot apply section 25A(5) to only some documents in a request and process the remainder under the Act. All documents must be exempt for section 25A(5) to apply.

Second element – no obligation to provide an edited copy of any document – section 25A(5)(b)

1.91

The second element in section 25A(5)(b) relates to providing access to edited copies of a requested document.

1.92

If the first element (outlined above) is satisfied, an agency or Minister can only apply section 25A(5) if:

  • it is not practicable to provide an edited copy of any of the documents that removes the exempt information;139 or
  • it is apparent from the request or through consultation by the agency or Minister with the applicant, that the applicant does not want access to an edited copy of the document that removes the exempt information.140

Not practicable to provide an edited copy – section 25A(5)(b)(i)

1.93

It must be objectively apparent from the nature of the documents, as described in the request, that it would not be practicable to provide an edited copy of any of the documents, under section 25.143

1.94

If it is practicable to provide an edited copy of one document out of multiple documents falling within a request, the agency or Minister cannot rely on section 25A(5) to refuse the request.144

For more information on assessing whether it is practicable to provide an edited copy, see section 25 – Deletion of exempt matter or irrelevant material.

Applicant does not wish to have access to an edited copy – section 25A(5)(b)(ii)

1.95

An agency or Minister does not have to provide access to an edited copy of a document if it appears the applicant does not want one.148 This may be apparent from the applicant’s request, or through consultation by the agency or Minister with the applicant.

1.96

If an applicant indicates they want access to edited copies of documents, the agency or Minister can only refuse the request under section 25A(5) if it is not practicable to provide one.149

1.97

An agency or Minister cannot assume that an applicant does not want to receive edited copies of documents, merely because the applicant was silent about this in their request.150 If an applicant does not indicate in their request whether they want access to edited copies of documents, an agency or Minister must consult with the applicant to find out whether they would not wish to have access to edited copies of documents.

Instances when section 25A(5) is unlikely to apply

1.98

Section 25A(5) will not apply where:

  • a decision maker grants access to some of the requested documents, or part of a requested document;
  • a request seeks access to multiple categories of documents, not all of which are obviously exempt on the face of the request;
  • a request seeks access to documents concerning the applicant, including correspondence that was sent to or received by the applicant, and that would not be exempt; or
  • the applicant indicates in their request, or through consultation, they are willing to accept an edited copy of the documents and it is practicable for the agency or Minister to provide an edited copy.
  1. Freedom of Information (Amendment) Act 1993 (Vic); Victoria, Parliamentary Debates, Legislative Council, 20 May 1993, 1148 (Haddon Storey, Minister for Tertiary Education and Training) https://www.parliament.vic.gov.au/images/stories/volume-hansard/Hansard%2052%20LC%20V412%20May1993.pdf.
  2. Victorian Parliament Legal and Constitutional Committee, A report to Parliament upon freedom of information in Victoria (Parliamentary Paper, 38th report to Parliament, 1989) [5.19].
  3. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [48].
  4. Freedom of Information (Amendment) Act 1993 (Vic); Victoria, Parliamentary Debates, Legislative Council, 20 May 1993, 1148 (Haddon Storey, Minister for Tertiary Education and Training) https://www.parliament.vic.gov.au/images/stories/volume-hansard/Hansard%2052%20LC%20V412%20May1993.pdf.
  5. Victorian Parliament Legal and Constitutional Committee, A report to Parliament upon freedom of information in Victoria (Parliamentary Paper, 38th report to Parliament, 1989) [5.19].
  6. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [48].
  7. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6]; applied in Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627, [48].
  8. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6]; applied in Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627, [48].
  9. Freedom of Information Act 1982 (Vic), section 3.
  10. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6]; applied in Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627, [48].
  11. As noted in McIntosh v Victoria Police [2008] VCAT 916, [11].
  12. Chief Commissioner of Police v McIntosh [2010] VSC 439, [32]. See Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6], [46].
  13. See example, Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627.
  14. Re A v Department of Human Services (1998) 13 VAR 235, 247.
  15. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6]; applied in Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627, [48].
  16. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6]; applied in Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627, [48].
  17. Freedom of Information Act 1982 (Vic), section 3.
  18. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6]; applied in Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627, [48].
  19. As noted in McIntosh v Victoria Police [2008] VCAT 916, [11].
  20. Chief Commissioner of Police v McIntosh [2010] VSC 439, [32]. See Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [6], [46].
  21. See example, Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627.
  22. Re A v Department of Human Services (1998) 13 VAR 235, 247.
  23. XYZ v Victoria Police [2007] VCAT 1686, [25].
  24. XYZ v Victoria Police [2007] VCAT 1686, [25].
  25. Freedom of Information Act 1982 (Vic), section 17(2).
  26. Freedom of Information Act 1982 (Vic), section 17(2).
  27. Freedom of Information Act 1982 (Vic), section 17(2).
  28. Freedom of Information Act 1982 (Vic), section 17(2).
  29. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [49]-[50].
  30. In Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [48], the applicant made 321 separate requests, including 54 identical requests to five government departments. All requests were transferred to a single department for processing.
  31. Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [49]-[50].
  32. In Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246, [48], the applicant made 321 separate requests, including 54 identical requests to five government departments. All requests were transferred to a single department for processing.
  33. McIntosh v Victoria Police [2008] VCAT 916, [10].
  34. McIntosh v Victoria Police [2008] VCAT 916, [26].
  35. Freedom of Information Act 1982 (Vic), section 25A(2).
  36. McIntosh v Victoria Police [2008] VCAT 916, [33].
  37. Re Swiss Aluminium Australia Ltd v Department of Trade [1986] AATA 179, [9]. 
  38. Re Swiss Aluminium Australia Ltd v Department of Trade [1986] AATA 179.
  39. Kelly v Department of Treasury & Finance [2001] VCAT 419, [26]-[28].
  40. Asher v Department of Innovation, Industry and Regional Development [2005] VCAT 1734.
  41. McIntosh v Victoria Police [2008] VCAT 916.
  42. McIntosh v Victoria Police [2008] VCAT 916, [10].
  43. McIntosh v Victoria Police [2008] VCAT 916, [26].
  44. Freedom of Information Act 1982 (Vic), section 25A(2).
  45. McIntosh v Victoria Police [2008] VCAT 916, [33].
  46. Re Swiss Aluminium Australia Ltd v Department of Trade [1986] AATA 179, [9]. 
  47. Re Swiss Aluminium Australia Ltd v Department of Trade [1986] AATA 179.
  48. Kelly v Department of Treasury & Finance [2001] VCAT 419, [26]-[28].
  49. Asher v Department of Innovation, Industry and Regional Development [2005] VCAT 1734.
  50. McIntosh v Victoria Police [2008] VCAT 916.
  51. Re SRB v Department of Health, Housing, Local Government & Community Services (1994) 19 AAR 178, 187; applied in Smeaton v Victorian WorkCover Authority [2012] VCAT 1550, [24].
  52. Re SRB v Department of Health, Housing, Local Government & Community Services (1994) 19 AAR 178, 187; applied in Smeaton v Victorian WorkCover Authority [2012] VCAT 1550, [24].
  53. Re SRB v Department of Health, Housing, Local Government & Community Services (1994) 19 AAR 178, 187; applied in Smeaton v Victorian WorkCover Authority [2012] VCAT 1550, [24].
  54. Chief Commissioner of Police v McIntosh [2010] VSC 439, [25].
  55. Smeaton v Victorian WorkCover Authority [2012] VCAT 1550, [24] – [25].
  56. Chief Commissioner of Police v McIntosh [2010] VSC 439, [31].
  57. Re A v Department of Human Services (1998) 13 VAR 235.
  58. Re SRB v Department of Health, Housing, Local Government & Community Services (1994) 19 AAR 178, 187; applied in Smeaton v Victorian WorkCover Authority [2012] VCAT 1550, [24].
  59. Chief Commissioner of Police v McIntosh [2010] VSC 439, [25].
  60. Smeaton v Victorian WorkCover Authority [2012] VCAT 1550, [24] – [25].
  61. Chief Commissioner of Police v McIntosh [2010] VSC 439, [31].
  62. Re A v Department of Human Services (1998) 13 VAR 235.
  63. Chief Commissioner of Police v McIntosh [2010] VSC 439, [23]-[24].
  64. Chief Commissioner of Police v McIntosh [2010] VSC 439, [23]-[24].
  65. Re A and Department of Human Services (1998) 13 VAR 235, 247.
  66. Re A and Department of Human Services (1998) 13 VAR 235, 247.
  67. Freedom of Information Act 1982 (Vic), section 3(1).
  68. Re SRB v Department of Health, Housing, Local Government & Community Services (1994) 19 AAR 178, 187; followed in Smeaton v Victorian WorkCover Authority [2012] VCAT 1236, [24].
  69. Freedom of Information Act 1982 (Vic), sections 25A(3) and 25A(4).
  70. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [43-45]. A similar approach was followed in Smeaton v Victorian WorkCover Authority [2012] VCAT 1550. The decisions drew on a non-exhaustive list of factors set out in the NSW decision of Cainfrano v Director General, Premier’s Department [2006] NSWADT 137, which drew in part on the decision of the former Victorian Administrative Appeals Tribunal in Re Borthwick and University of Melbourne (1985) 1 VAR 33.
  71. In The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288,, importance was placed on the public interest in the transparency of gift giving to state agencies.
  72. See also Re A v Department of Human Services (1998) VAR 235, 246, where it was stated the applicant’s refusal to limit the ambit of a broad request in any way was relevant to unreasonableness.
  73. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [45].
  74. Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627.
  75. Smeaton v Victorian WorkCover Authority (Review and Regulation) [2015] VCAT 1760, [19], [25].
  76. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [46].
  77. For example, in Cainfrano v Director General, Premier’s Department [2006] NSWADT 137, [60], the NSW Administrative Decisions Tribunal stated the NSW Premier’s Department, which could ‘be expected to have substantial bodies of documents that involve important areas of government activity’, should not be given the ‘degree of liberality … that might be appropriate to a very small statutory body with a small staff complement, and consequently a very limited capacity to deal with FOI requests of scale’.
  78. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [24].
  79. Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627.
  80. The Age Company Pty Ltd v Cenitex [2012] VCAT 1523. See also The Age Company Pty Ltd v Cenitex [2013] VCAT 288.
  81. AB v Department of Education [2012] VCAT 1233.
  82. Smeaton v Victorian WorkCover Authority [2012] VCAT 1236.
  83. Smeaton v Victorian WorkCover Authority [2012] VCAT 1550.
  84. BR6 and Department of Transport [2020] VICmr 169 (24 June 2020).
  85. CN2 and Victoria Police [2021] VICmr 10 (12 January 2021).
  86. Freedom of Information Act 1982 (Vic), section 3(1).
  87. Re SRB v Department of Health, Housing, Local Government & Community Services (1994) 19 AAR 178, 187; followed in Smeaton v Victorian WorkCover Authority [2012] VCAT 1236, [24].
  88. Freedom of Information Act 1982 (Vic), sections 25A(3) and 25A(4).
  89. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [43-45]. A similar approach was followed in Smeaton v Victorian WorkCover Authority [2012] VCAT 1550. The decisions drew on a non-exhaustive list of factors set out in the NSW decision of Cainfrano v Director General, Premier’s Department [2006] NSWADT 137, which drew in part on the decision of the former Victorian Administrative Appeals Tribunal in Re Borthwick and University of Melbourne (1985) 1 VAR 33.
  90. In The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288,, importance was placed on the public interest in the transparency of gift giving to state agencies.
  91. See also Re A v Department of Human Services (1998) VAR 235, 246, where it was stated the applicant’s refusal to limit the ambit of a broad request in any way was relevant to unreasonableness.
  92. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [45].
  93. Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627.
  94. Smeaton v Victorian WorkCover Authority (Review and Regulation) [2015] VCAT 1760, [19], [25].
  95. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [46].
  96. For example, in Cainfrano v Director General, Premier’s Department [2006] NSWADT 137, [60], the NSW Administrative Decisions Tribunal stated the NSW Premier’s Department, which could ‘be expected to have substantial bodies of documents that involve important areas of government activity’, should not be given the ‘degree of liberality … that might be appropriate to a very small statutory body with a small staff complement, and consequently a very limited capacity to deal with FOI requests of scale’.
  97. The Age Company Pty Ltd v CenITex (Review and Regulation) [2013] VCAT 288, [24].
  98. Davis v Suburban Rail Loop Authority (Review and Regulation) [2021] VCAT 627.
  99. The Age Company Pty Ltd v Cenitex [2012] VCAT 1523. See also The Age Company Pty Ltd v Cenitex [2013] VCAT 288.
  100. AB v Department of Education [2012] VCAT 1233.
  101. Smeaton v Victorian WorkCover Authority [2012] VCAT 1236.
  102. Smeaton v Victorian WorkCover Authority [2012] VCAT 1550.
  103. BR6 and Department of Transport [2020] VICmr 169 (24 June 2020).
  104. CN2 and Victoria Police [2021] VICmr 10 (12 January 2021).
  105. XYZ v Victoria Police [2007] VCAT 1686, [22].
  106. XYZ v Victoria Police [2007] VCAT 1686, [22].
  107. Tabcorp Holdings Limited v Secretary to the Department of Treasury and Finance (Review and Regulation) [2013] VCAT 1731, [35].
  108. Freedom of Information Act 1982 (Vic) section 55(2).
  109. Tabcorp Holdings Limited v Secretary to the Department of Treasury and Finance (Review and Regulation) [2013] VCAT 1731, [35].
  110. Freedom of Information Act 1982 (Vic) section 55(2).
  111. Freedom of Information Act 1982 (Vic), section 25A(7).
  112. See Smeaton v Victorian WorkCover Authority [2011] VCAT 2386; and Smeaton v Victorian WorkCover Authority [2012] VCAT 73.
  113. Freedom of Information Act 1982 (Vic), section 25A(7).
  114. See Smeaton v Victorian WorkCover Authority [2011] VCAT 2386; and Smeaton v Victorian WorkCover Authority [2012] VCAT 73.
  115. The exemptions are contained in Part IV – Exempt documents.
  116. As required by section 25 – Deletion of exempt matter or irrelevant material.
  117. The exemptions are contained in Part IV – Exempt documents.
  118. As required by section 25 – Deletion of exempt matter or irrelevant material.
  119. Knight v Corrections Victoria [2010] VSC 338, [58].
  120. Knight v Corrections Victoria [2010] VSC 338, [58].
  121. Freedom of Information Act 1982 (Vic), section 3. 
  122. Freedom of Information Act 1982 (Vic), section 16(2).
  123. See Knight v Corrections Victoria [2010] VSC 338; ‘CI6’ and Court Services Victoria (Freedom of Information) [2020] VICmr 326.
  124. Knight v Corrections Victoria [2010] VSC 338, [58].
  125. Knight v Corrections Victoria [2010] VSC 338, [58].
  126. Freedom of Information Act 1982 (Vic), section 3. 
  127. Freedom of Information Act 1982 (Vic), section 16(2).
  128. See Knight v Corrections Victoria [2010] VSC 338; ‘CI6’ and Court Services Victoria (Freedom of Information) [2020] VICmr 326.
  129. Knight v Corrections Victoria [2010] VSC 338, [39].
  130. Knight v Corrections Victoria [2010] VSC 338, [38].
  131. Knight v Corrections Victoria [2010] VSC 338, [38]-[39].
  132. Knight v Corrections Victoria [2010] VSC 338, [40]; See also ‘CI6’ and Court Services Victoria (Freedom of Information) [2020] VICmr 326 and Victorian Legal Services Commissioner v Grahame (No 2) [2019] VCAT 1878.
  133. Knight v Corrections Victoria [2010] VSC 338, [39].
  134. Knight v Corrections Victoria [2010] VSC 338, [38].
  135. Knight v Corrections Victoria [2010] VSC 338, [38]-[39].
  136. Knight v Corrections Victoria [2010] VSC 338, [40]; See also ‘CI6’ and Court Services Victoria (Freedom of Information) [2020] VICmr 326 and Victorian Legal Services Commissioner v Grahame (No 2) [2019] VCAT 1878.
  137. Freedom of Information Act 1982 (Vic), sections 25(b) and 25A(5)(b)(i).
  138. Freedom of Information Act 1982 (Vic), sections 25(c) and 25A(5)(b)(ii).
  139. Freedom of Information Act 1982 (Vic), sections 25(b) and 25A(5)(b)(i).
  140. Freedom of Information Act 1982 (Vic), sections 25(c) and 25A(5)(b)(ii).
  141. Knight v Corrections Victoria [2010] VSC 338, [50].
  142. Knight v Corrections Victoria [2010] VSC 338, [50].
  143. Knight v Corrections Victoria [2010] VSC 338, [50].
  144. Knight v Corrections Victoria [2010] VSC 338, [50].
  145. Freedom of Information Act 1982 (Vic), section 25A(5)(b)(ii).
  146. Freedom of Information Act 1982 (Vic), section 25A(5)(b)(ii).
  147. Victorian Legal Services Commissioner v Grahame (No 2) [2019] VCAT 1878.
  148. Freedom of Information Act 1982 (Vic), section 25A(5)(b)(ii).
  149. Freedom of Information Act 1982 (Vic), section 25A(5)(b)(ii).
  150. Victorian Legal Services Commissioner v Grahame (No 2) [2019] VCAT 1878.

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Last updated 23 October 2024

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